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Mackey v. O'Neal

Superior Court of Delaware, New Castle County

November 9, 1953

MACKEY et al.
v.
O'NEAL et al.

Action for injuries sustained by passenger on defendants' bus. On motion to dismiss second count of amended complaint, the Superior Court, Layton, J., held that allegation that passenger's injuries were the result of a sudden stop of bus did not show that movement of bus was sufficiently unusual or extraordinary to bring case within res ipsa loquitur doctrine as applied in Maryland.

Motion granted.

See also 93 A.2d 526.

Count of amended complaint alleging that injuries sustained in Maryland by paying passenger on defendants' bus were the result of a sudden stop was dismissible for failure to show that movement of bus was sufficiently unusual or extraordinary to bring case within res ipsa loquitur doctrine as applied in Maryland.

Page 338

[48 Del. 234] Motion to dismiss Count II of amended complaint. Granted.

Clement C. Wood, of Young & Wood, Wilmington, for plaintiffs.

William H. Bennethum, Wilmington, for defendants.

LAYTON, Judge.

The second count of the complaint is obviously based upon the doctrine of res ipsa loquitur. It asserts that the plaintiff, Margaret Mackey, was a passenger for hire on defendants' bus on March 20, 1952, and that about seven o'clock P.M. of that day, on Route 40, Maryland, defendants' bus made a sudden stop, propelling plaintiff from her seat, whereby she was seriously injured, and that her injuries were due to defendants' negligence, the exact nature of which is unknown.

Neither party disputes the proposition that in a case such as this, it is the lex loci, not the lex fori, which governs. Lachman v. Pennsylvania Greyhound Lines, 4 Cir., 160 F.2d 496; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663.

Defendants' motion is based upon two grounds. The first is that the doctrine of res ipsa loquitur will not be applied in Maryland unless the agency causing the injury was under defendants' exclusive management and control, and that since this was an accident involving a third vehicle, obviously not under defendants' control, the count is defective and must be [48 Del. 235] dismissed. It is the law of Maryland that the doctrine of res ipsa loquitur is not applicable in cases where the injury might have been caused either by defendant's negligence or by the sole negligence of some third party, for which defendant was in no wise responsible. Klan v. Security Motors, 164 Md. 198, 164 A. 235, 236. But defendant, at this point, is in no position to urge this proposition. The complaint before me merely recites that plaintiff was thrown from her seat by a sudden stop. Nowhere in the complaint, or in the subsequent amendments thereto, does it appear that some third party was even involved, let alone the sole contributing cause of the injury sustained. Now, at the trial of this case, it may be that, as in the Klan case, plaintiff herself will be forced to show circumstances indicating that the sudden stop which caused her injury was the result of the negligent operation of some other vehicle. In such event, defendant could move for judgment on the count under discussion at the end of plaintiff's case. Otherwise, defendant might be forced to offer exculpatory evidence.

However that may be, while defendant is correct in its appraisal of the Maryland law on this subject, it is obviously premature in making this argument. In this respect, the motion is denied.

The second ground for dismissal of Court II is that the Maryland Courts will not apply res ipsa loquitur to those situations wherein passengers are injured by reason of the normal stops, starts, or jerks incident to the operation of trains, street cars, and buses. Brocato v. United Rys. and Electric Co. of Baltimore, 129 Md. 572, 99 A. 792. But where the injury is occasioned by an unusual or extraordinary stop, jerk, or start, the doctrine is available to a plaintiff. Grinath v. Baltimore & Belair Electric Ry. Co., 145 Md. 290, 125 A. 604. The complaint here charges that plaintiff's injuries were the result of a sudden stop. In the Brocato case, just cited, it was said [ 129 Md. 572,99 A. 793]:

‘ It is not shown from the facts stated that the motion of the car spoken of as a ‘ jerk’ was an unusual or extraordinary [48 Del. 236] motion, showing any negligent operation of the car. It is true one of the witnesses said the car ...


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